22 Jan What Do Bad Policymaking and Bad Driving Have in Common?
You can insure against both. This piece from Sunday’s NYT has the interesting details on liability insurance that covers more than 30,000 federal officials against the perils of work-related lawsuits. With a policy costing less than $300 a year (the government often picking up half the tab), mid-level officials can afford the likes of Clinton impeachment attorney Robert Bennett to represent them. Just try to get Bennett to do your next fender bender!
I understand that being on the wrong end of these kinds of investigations can’t be any fun. But with this kind of coverage at least you can have some confidence that it won’t wipe out your kids’ college funds. To that extent, it has to give the lie to the heavy recent riff on how over-legalization is scaring the best and brightest away from government service. It’s a theme in Jack Goldsmith’s book and the volume’s been turned up in the wake of Jose Padilla’s suit against John Yoo.
Yoo plays it up again in this op-ed in the weekend WSJ (this on top of an earlier piece in the Philadelphia Inquirer).
The prospect of having to waste large sums of money on lawyers will deter talented people from entering public service, leading to more mediocrity in our bureaucracies. It will also lead to a risk-averse government that doesn’t innovate or think creatively. Government by lawsuit is no way to run, or win, a war.
I don’t buy it, or at least it’s way overdetermined. There are lots of reasons that the federal government is no longer attracting top talent. There’s the obvious explanation of this Administration’s failed substantive policies and take-no-prisoners (pun intended) culture of bureaucrat bullying — here read Goldsmith, too. (And let’s not forget what “creative” lawyering got us.) But it’s bigger than them. Even when we have a Democrat back in the White House (will Yoo still vaunt the values of the ballot box then, as he does in the WSJ piece?), the top students out of the elite schools are unlikely to march back to Washington. Too much of the real action is moving elsewhere.
This may be a policy issue for other situations, but in this case Yoo is already guaranteed free legal representation by the government. The MCA amended 42 U.S.C. 2000dd-1 (b) to require the government to “provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses” to represent Yoo or any other Federal employee “with respect to any civil action” arising from “specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity”. Now Padilla is not an alien, but the detention and interrogation policies that Yoo issued were directed at aliens and only incidentally “created an atmosphere” (according to Padilla) that effected him too. So in this particular case, Yoo’s entire exposure is one dollar. In fact, if I were Yoo I would be careful about running up any legal bills. Since the government is obligated to provide his defense, the insurance company may decide that there is no covered loss and refuse to reimburse for unnecessary privately retained counsel.
Professor Spiro,
I agree with you on a macro level in that I don’t think the potential to face liability ala Yoo will keep people out of government lawyer jobs.
However, I disagree with you on a micro level. A lawyer asked to write a memo on a topic like the CIA’s interrogation techniques, who faces the possiblity of liability, will have a great incentive to over-state the limits of international law less he run afoul of someone else’s interpretation. The risk-adverse, or even risk-neutral, lawyer would always err in putting forth a broad interpretation of the limits placed on the executive.